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Wisconsin Supreme Court accepts two new cases

Madison, Wisconsin -
February 8, 2012

The Wisconsin Supreme Court has voted to accept two new cases. The Court also acted to deny review in a number of cases. The case numbers, issues, and counties of origin are listed below. Court of Appeals opinions available online for the newly accepted cases are hyperlinked.

2010AP2597-CR State v. Lemoine This case examines issues arising from the conviction of Dennis D. Lemoine on charges of having sexual contact with a child under 13 years of age, contrary to WIS. STAT. § 948.02(1)(e) (2009-10). Lemoine asks the Supreme Court to review lower court decisions on whether statements he made to police were voluntary and properly admitted, and if the admission of his statements was harmless error.

Some background: Lemoine was accused of sexually assaulting a five-year-old girl by touching her vaginal area during a visit to the girl's parents' home in Baraboo on April 23, 2007. Lemoine had agreed to watch the girl for her parents as she jumped on a trampoline in the backyard while her parents visited outside the garage with someone else. Lemoine said that at one point, the girl ran over to him and jumped onto his lap as he sat on the back porch steps.

Four days later, the girl disclosed the alleged assault to her parents, who reported it to police. On April 29, the girl's mother, grandmother, and a detective took her to a Madison hospital for a sexual-assault examination.

On the morning of April 30, the detective interviewed the girl at the sheriff's department. The interview was video recorded and transcribed, and a DVD of the interview was played at trial. In the interview, the detective asked he girl repeatedly in various ways if anyone had ever given her a "bad touch." The girl did not implicate Lemoine at this time. The detective and the girl then left the room, and the girl had contact with her mother. When the detective and the girl returned 10 minutes later, the girl disclosed that Lemoine had pulled down her underwear and touched her "pee-pee."

Later that day, the detective called Lemoine and asked him to come to the police station without providing a reason. Lemoine arrived within an hour, and the detective took Lemoine to a small room to be questioned. The interview was recorded. Lemoine maintained his innocence when a police detective confronted him with the assault allegations. A police lieutenant told Lemoine that the girl had just "gone through some very lengthy medical procedures" and police were awaiting the test results. The detective also asked Lemoine for a DNA sample. Lemoine agreed to provide a DNA sample but none was taken. The lieutenant then suggested he could "help out" Lemoine by limiting publicity if he "came clean."

Lemoine asked what would happen if he admitted to the allegations. The lieutenant responded by promising Lemoine that if he gave the "true story . . . today" he would not spend the night in jail; that this would "give you time to call an attorney . . . [o]therwise, you know, we can lock you up," and that, in jail, he would not be able to make phone calls.

Moments later, the lieutenant encouraged Lemoine to talk to the district attorney so that "it doesn't end up in court" or "in the public forum," and Lemoine said he would admit to the allegations if he were not taken to jail. At the end of the interview, Lemoine was issued a citation, given a court date, and allowed to leave.

The state charged Lemoine with first-degree sexual assault of a child and the case went to jury trial. Lemoine moved unsuccessfully to suppress certain incriminating admissions made to investigators on April 30 on grounds that they were coerced.

During the trial, Lemoine admitted the girl had sat on his lap, and that he accidently touched her crotch. The nurse who conducted the girl's sexual assault exam six days after the alleged incident testified she observed "redness" near the girl's vaginal opening, which she said could have been from "inflammation, irritation or infection." The nurse testified she did not find evidence of sexual assault, but that "[i]f there is a penetration assault, tissue heals very quickly."

On appeal, Lemoine argued that his incriminating statements were involuntary. In particular, he alleged that the lieutenant promised not to put him in jail that night if he told the "true story" and suggested that, if he were jailed, he would be unable to exercise his constitutional right to counsel; that police were deceptive regarding the extent of the girl's medical exam; that police failed to give Miranda warnings; and that the lieutenant offered to limit publicity and suggested the case could be kept out of the "public forum" even if he gave an incriminating statement.

The state said Lemoine's statements were voluntary because: (1) the promise not to jail Lemoine in exchange for his cooperation was not coercive conduct because the investigators kept their promise by allowing him to leave after the interview; (2) the lieutenant's representations about access to counsel from jail were "not patently false;" (3) Miranda warnings were not required because defense counsel conceded that Lemoine was not in custody; (4) the interview lasted only 75 to 80 minutes; and (5) Lemoine was a person of ordinary intelligence who was not particularly susceptible to coercive tactics.

The Court of Appeals assumed without deciding that the challenged portion of Lemoine's incriminating statements were involuntary and therefore should have been suppressed. The Court of Appeals then held that the circuit court's admission of these statements was harmless error, leading Lemoine to seek Supreme Court review. From Sauk County.

2010AP1812 State v. Anagnos This case examines whether a deputy had reasonable suspicion to pull over a vehicle, and whether the driver's refusal to take a chemical test was lawful because the deputy allegedly did not have reasonable suspicion to stop the vehicle.

More specifically, the state asks the Supreme Court whether the issue of reasonable suspicion to stop a vehicle can be raised in a refusal hearing by a person who has refused to submit to chemical testing under Wisconsin's implied consent law, Wis. Stat. § 343.305, which, if determined favorably to the person, results in no revocation of the person's operating privilege.

Some background: At approximately 1:15 a.m., while on routine patrol, Deputy Garth Grami noticed Dimitrius Anagnos's vehicle pull out of a parking lot and turn left, crossing a divided highway barrier to proceed northbound on Highway 120. The deputy believed the barrier was approximately four to five inches high and not the type of barrier vehicles would normally cross in making a turn. The deputy testified that the vehicle then accelerated at a high rate of speed before coming to a stop at a red light in the left-hand turn lane, while the deputy's vehicle was in the right-hand turn lane. When the light turned green, the deputy observed the vehicle rapidly accelerate and turn left, without using its turn signal. The deputy then pulled the vehicle over. The driver, Anagnos, was arrested for operating while intoxicated, first offense.

Anagnos refused to submit to chemical testing pursuant to § 343.305. A notice of intent to revoke his operating privilege was filed. Anagnos requested a refusal hearing at which the defense counsel stipulated that the arresting officer complied with the informing the accused requirements. Anagnos wanted to raise the limited issue of whether the deputy had reasonable suspicion to stop his vehicle.

The court questioned whether reasonable suspicion to stop was an issue in a refusal hearing. The court indicated it would convert the hearing to a suppression hearing. The state initially objected that there was nothing to suppress, but ultimately consented to the court conducting the suppression hearing after Anagnos stipulated that the deputy complied with § 343.305(4) and Anagnos refused the test.

Following the evidentiary hearing, the circuit court concluded the deputy did not have reasonable suspicion to stop Anagnos' vehicle and, therefore, lacked probable cause to arrest him for OWI. The circuit court suppressed all evidence obtained as a result of the stop. It concluded that Anagnos's refusal to submit to a chemical test was reasonable.

On appeal, the state argued that even if the traffic stop was not justified, the circuit court was not entitled to inquire into the lawfulness of the stop at a refusal hearing. The state also argued that the deputy who arrested Anagnos had reasonable suspicion to stop the vehicle. The Court of Appeals rejected these arguments and affirmed, concluding that Anagnos broke no traffic laws and there was no testimony the deputy suspected Anagnos of driving under the influence. The Court of Appeals noted the state had not challenged the circuit court's fact findings. Therefore, the appellate court concluded the circuit court properly suppressed all of the evidence obtained as a result of the stop.

The Court of Appeals explained that without reasonable suspicion or probable cause to pull over his vehicle, the deputy had no authority to require Anagnos to submit to a chemical test.

The state argues that the Court of Appeals' expansion of issues conflicts with 25 years of decision relying on the formulation in State v. Nordness, 128 Wis. 2d 15, 33-34, 381 N.W.2d 300 (1986) case.

The state contends that a refusal hearing is civil in nature. See State v. Krause, 2006 WI App 43, ¶9, 289 Wis. 2d 573, 712 N.W.2d 67. It notes that the standard of probable cause determinations at a refusal hearing is different than at a suppression hearing, which is a criminal matter. See State v. Wille, 185 Wis. 2d 673, 679, 518 N.W.2d 235 (Ct. App. 1994). It says the court of appeals' interpretation is contrary to the purpose of the implied consent law and would dramatically alter the scope of a refusal hearing.

In his response, Anagnos contends the court of appeals' decision is consistent with the Nordness case. He says that § 343.305(9)(a)5 permits courts during a refusal hearing to determine whether the person was lawfully placed under arrest for OWI. He says since a person cannot be lawfully arrested for OWI without first having reasonable suspicion to stop the vehicle, lower court's decision is proper. Justices N. Patrick Crooks and David T. Prosser did not participate. From Walworth County.

Review denied: The Supreme Court denied review in the following cases. As the state's law-developing court, the Supreme Court exercises its discretion to select for review only those cases that fit certain statutory criteria (see Wis. Stat. § 809.62). Except where indicated, these cases came to the Court via petition for review by the party who lost in the lower court: